HKSAR v Lam Ka Wai
Court of First Instance
Criminal Case No 296 of 2017
Albert Wong J
21 September 2018

Criminal sentencing — manslaughter — suicide pact — 20-year-old defendant and 16-year-old girlfriend — defendant survived but girlfriend drowned — culpability of defendant, taking into account his failure to dissuade girlfriend from committing suicide with him and, upon being rescued, failing to disclose that she was still in sea

D pleaded guilty to manslaughter. D, who was aged 20 at the material time, entered into a pact with X, his girlfriend aged 16, to commit suicide together. D and X subsequently jumped off a bridge into the sea intending to kill themselves. D was rescued and survived but did not disclose that X was still in the water. It was not until eight days later when asked by police that D disclosed X’s involvement in the incident. D submitted a psychiatric report and a medical assessment of his mental condition stated in the admitted facts.

Held, sentencing D to four years’ imprisonment, that:

1) There was no sentencing guideline for manslaughter committed by way of a suicide pact, which required a common agreement between two persons having as its object their deaths. In sentencing, the court had to consider the overall circumstances of the case and whether there was anything worthy of sympathy, as well as carefully assess the culpability of the survivor. (See paras. 14-15, 25.)

2) D’s mental health had been impaired. However, according to the medical evidence, his mental condition at the time should have been normal, despite his judgment being affected. He had been worried about being convicted of a sexual offence he was being investigated for, but was still capable of analysing the pros and cons of the situation. He was aware that X was greatly influenced by him and that to a large extent, X decided to commit suicide because of him. He was also aware that what he did would cost X her life and cause great sadness to her family. In the circumstances, D’s culpability was considerable. (See paras. 20-21.)

3) The present circumstances were distinguishable from those cases where a defendant was trying to help another person extricate himself or herself from agony. D did not reflect on the matter, nor did he turn back and persuade the deceased not to commit suicide. The situation was also distinguishable from those cases where a defendant and another person had both felt desperate. D did not carry out his acts during an episode of depression, and from an objective point of view, X was not in such an extremely harsh and desperate situation from which she could not see a way out. (See para. 21.)

4) D was not to be blamed for not saving X when they were in the sea. However, his culpability was enhanced by the fact that after being rescued, he withheld X’s involvement in the incident. This showed that D did not care whether X lived or not. This was despite D saying that he and X had a prior agreement that they would not tell others about their suicide attempt. Taking into account that his judgment might have been affected by his impaired mental health, his culpability was slightly reduced. D’s delay in telling the truth was also relevant in assessing his culpability. (See paras. 23-24.)

5) In view of the above, a custodial sentence was inevitable. A starting point of six years was appropriate, reduced for plea to a sentence of four years’ imprisonment. (See paras. 26, 30.)

Hearing

This was a hearing to sentence the defendant for manslaughter involving a suicide pact. The facts are set out in the judgment.

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).